Committee
Against Torture, Consideration of reports submitted by States Parties under
article 19 of the Convention, Antilles, The Netherlands, U.N. Doc. CAT/C/25/Add.2
(1994).

CONSIDERATION OF REPORTS
SUBMITTED BY STATES PARTIES UNDER ARTICLE 19 OF THE CONVENTION

Second periodic report due in 1994

Addendum

THE NETHERLANDS: ANTILLES*[16 June 1994]

* The initial report submitted by the Government of the Netherlands
is contained in documents CAT/C/9/Add.1 to 3; for its consideration
by the Committee, see documents CAT/C/SR.46, 47, 63 and 64 and Official
Records of the General Assembly, forty-fifth and forty-sixth sessions,
A/45/44, paras. 435-470 and A/46/46, paras. 154-181. The second
periodic report of the Netherlands (metropolitan territory) is contained
in document CAT/C/25/Add.1.

Annexes

These documents are available for consultation in the files of the
Centre for Human Rights, as received from the Government of the
Netherlands in English.

I. Publication Bulletin No. 5, Act of the Central Government of
the Netherlands Antilles of 28 January 1994

II. Civil Actions in 1991. Date of judgement: 17 July 1991. The
Court of First Instance of the Netherlands Antilles, place of trial:
Curaçao. Judgement in summary process No. KG 209/1991

III. Criminal Actions in 1993. Date of judgement: 25 February 1994.
A defended action. The Court of First Instance of the Netherlands
Antilles, place of trial: Curaçao. Criminal Judgement in the action
of the Prosecuting Authority versus Reonald Bernadina

IV. Criminal Actions in 1993. Date of judgement: 9 March 1994. Defended
action. The Court of First Instance of the Netherlands Antilles,
place of trial: Curaçao. Criminal Judgement in the action of the
Prosecuting Authority versus Arthur Ramon Jansen

I. INFORMATION
OF A GENERAL NATUREA. Introduction
1. This report is submitted in accordance with article 19 of the
Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, which entered into force with respect to
the Kingdom of the Netherlands on 21 January 1989. The present periodic
report is submitted in accordance with the general guidelines regarding
the form and contents of periodic reports which were provisionally
adopted by the Committee against Torture on 30 April 1991. This
report will focus on the period from 1 January 1990 to 1 January
1994.

1. Structure of the Kingdom of the Netherlands

2. The present constitutional structure of the Kingdom of the Netherlands
dates back to 1954, when, after several years of study, discussion
and negotiation, it was decided by the Netherlands, Suriname and
the Netherlands Antilles (then including Aruba) to establish a new
constitutional order under which they (according to the Charter
for the Kingdom, the constitutional document which was promulgated)
"will conduct their internal affairs autonomously and in their
common interest on a basis of equality and will accord each other
reciprocal assistance". Thus the Kingdom, while remaining one
sovereign entity under international law, came to consist of three
co-equal partners which have distinct identities and are fully autonomous
in their internal affairs.

3. Since then, two important changes have taken place. In 1975 Suriname
decided - with the full assent of the partners - to leave the Kingdom
and become a sovereign State in its own right. In 1986 Aruba became
a separate country within the Kingdom, under the Charter, and therefore
now has the same constitutional status as the two other countries,
the Netherlands and the Netherlands Antilles.

4. The Charter, the highest constitutional instrument of the Kingdom,
is a legal document sui generis, which is based upon its
voluntary acceptance by the three countries. It falls into three
essential parts. The first part defines the association between
the three countries, which is federal in nature. The fact that together
the three countries form one sovereign entity implies that a number
of matters need to be administered by the countries together, through
the institutions of the Kingdom (wherever possible, the organs of
the countries participate in the conduct of these affairs). These
matters are called Kingdom affairs. They are enumerated in the Charter
and include the maintenance of independence, defence, foreign relations,
the safeguarding of fundamental human rights and freedoms, legal
stability and proper administration. The second part deals with
the relationship between the countries as autonomous entities. Their
partnership implies that the countries respect each other and render
one another aid and assistance, materially and otherwise, and that
they shall consult and coordinate in matters which are not Kingdom
affairs but in which a reasonable degree of coordination is in the
interest of the Kingdom as a whole. The third part of the Charter
defines the autonomy of the countries, which is the principle underlying
the Charter; the countries govern themselves according to their
own wishes, subject only to certain conditions imposed by their
being part of the Kingdom. Elementary principles of democratic government,
observance of the Charter and Kingdom legislation, and the adequate
functioning of the organs of the country are matters of concern
to the whole of the realm. Conversely, although Kingdom affairs
are matters for the Kingdom as a whole, the countries play active
roles in the way they are conducted. In foreign relations, for example,
the countries themselves, under the aegis of the Kingdom, deal with
matters the substance of which is in their autonomous sphere.

5. The Netherlands Antilles is an autonomous party within the Kingdom
of the Netherlands and consists of five islands in the Caribbean,
with a population of about 187,687 inhabitants representing more
than 40 nationalities of diverse ethnic origins. The Netherlands
Antilles have their own Constitution which contains the same basic
human rights and freedoms provided by the Constitution of the Netherlands.

6. The judiciary, the executive powers and the legislature are governed
by the same principles of the Netherlands Constitution. The majority
of the rights and freedoms contained in the different Covenants
are protected by the Constitution, while others are covered by separate
laws.

7. According to article 43 of the Charter the safeguarding of the
fundamental human rights and freedoms, legal security and sound
government are Kingdom affairs, but the Netherlands Antilles also
has an autonomous
responsibility for the realization of these rights and freedoms.
Before an amendment affecting basic rights is made to the Constitution
of the Netherlands Antilles the opinion of the Government must be
obtained. A bill containing such an amendment must be submitted
to the Government of the Kingdom for its approval.

8. The independence of the judiciary in the Netherlands Antilles
is guaranteed by the Constitution, which provides that the judges
and the Attorney-General of the Court of Appeal shall be appointed
by the Queen, who pursuant to the Charter, is Head of State of the
whole Kingdom. The Supreme Court of the Netherlands has power of
cassation in the Netherlands Antilles, and exercises these powers
at the request of party(ies) in the Netherlands Antilles.

9. In view of the above-mentioned responsibility of the Kingdom
for the safeguarding of the fundamental human rights and freedom,
legal security and sound government, article 50 of the Charter provides
that the Queen, as Head of the Kingdom, may suspend or annul by
decree, stating reasons, any legislation or administrative measure
in the Netherlands Antilles which conflicts with, inter alia,
the Charter, international law or interests whose safeguarding and
promotion is the affair of the Kingdom. Proposals for annulment
are made by the Council of Ministers of the Kingdom. However, this
step is only taken if redress has not been obtained within the Netherlands
Antilles.

10. The Kingdom of the Netherlands signed the Convention against
Torture and other Cruel, Inhuman or Degrading Treatment or Punishment
on 4 February 1984 and deposited the instrument of ratification
on 21 December 1988. The Convention became effective for the Kingdom
as a whole on 1 January 1989. Upon ratification the Kingdom of the
Netherlands recognized the competence of the Committee against Torture
to receive and consider communications from a State party that claims
that another State party is not fulfilling its obligations under
the Covenant, as well as communications from or on behalf of individuals
subject to its jurisdiction who claim to be victims of a violation
by a State party of the provisions of the Convention.
B. General legal framework

11. The
Constitution of the Netherlands Antilles does not expressly prohibit
torture. It does, however, contain provisions relating to the protection
from torture and other cruel, inhuman or degrading treatment or
punishment included in this Convention.

12. The
basic provision relating to protection from torture and other cruel,
inhuman or degrading treatment or punishment is to be found in article
3 of the Constitution of the Netherlands Antilles, which provides
that "Everyone in the territory of the Netherlands Antilles
shall have an equal right to the protection of person (and property)".
This right cannot be restricted by laws. As a result of this article
aliens in the Netherlands Antilles have the same status as citizens
of the Netherlands Antilles with regard to the protection of person
(and property).

13. Article
106 reads as follows:

1. With the exception
of the cases provided for by national decree, it is prohibited
to carry out any arrests, except by judicial order, containing
the reasons for the arrest.

2. Such a judicial
order must be served upon the party whom it concerns, either
at the moment of or immediately following his arrest.

3. The form of the
judicial order and the time-span during which all parties arrested
must be heard, is determined by national decree.

14. The
term "torture or cruel, inhuman or degrading treatment or punishment"
is not employed in the legislation of the Netherlands Antilles.

15. The
Criminal Code of the Netherlands Antilles contains provisions relating
to various forms of assault (arts. 300-322). By a broad interpretation
these articles of the Criminal Code of the Netherlands Antilles
could be applicable to many forms of torture.

16. There
is also the possibility, however, of not including torture among
the criminal offences relating to assault or serious assault, but
rather of making it punishable through separate description of it
as a criminal offence.

Contrary
to the standpoint taken in the initial report, the Government of
the Netherlands Antilles opts for a separate description of and
imposition of punishment for the offence covering torture. The circumstances
leading up to this will be specified in the section on article 1
of the Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment.

C. Other treaty commitments

17. The
Netherlands Antilles are a party to the following agreements containing
provisions regarding torture:

(a) The
International Covenant on Civil and Political Rights and the Optional
Protocol thereto (entered into force as of 11 March 1979);

(b) The
four Geneva Conventions of 1949 concerning the protection of victims
of armed conflict (entered into force as of 3 February 1955);

(c) The
two Additional Protocols of 1977 to the Geneva Conventions

(entered
into force as of 26 December 1987);

(d) The
European Convention for the Protection of Human Rights and Fundamental
Freedoms (entered into force as of 31 December 1955);

(e) The
Sixth Protocol to the European Convention, listed above, relating
to the abolition of the death penalty (entered into force as of
1 May 1986);

(f) The
European Convention for the Prevention of Torture and Inhuman or
Degrading Treatment or Punishment (entered into force as of 20 January
1989);

(g) The
Convention on the Prevention and Punishment of the Crime of Genocide
(entered into force as of 18 September 1966).

D. Incorporation

18. In
the Netherlands Antilles most of the provisions regarding material
rights set out in several conventions are, in accordance with article
2, paragraph 2 of the Constitution of the Netherlands Antilles,
directly applicable in view of their content and wording and can
be applied by the courts in the Netherlands Antilles without any
requirement of legislation.

Articles
93 and 94 of the Netherlands Constitution, which allow appropriate
treaty provisions to have direct legal consequences for the individuals
and allow even to prevail over conflicting legislation, also apply
to the Netherlands Antilles on the basis of articles 5 and 24 of
the Charter for the Kingdom of the Netherlands. Article 93 of the
Charter reads: "Provisions of treaties and of resolutions by
international institutions which may be binding on all persons by
virtue of their contents shall become binding after they have been
published". Article 94 reads: "The valid legal stipulations
within the Kingdom are not applicable if these are not compatible
with any and all the binding stipulations of conventions and decrees
of international organizations".

19. However,
treaty provisions which stipulate that certain acts must be regarded
as criminal offences and require that offenders must be prosecuted
under the national criminal law are not directly applicable. In
the first place, article 1 of the Criminal Code states that an act
can only be deemed to be an offence on the basis of a previously
established statutory provision in the criminal law. This means
that definitions of offences contained in international agreements
have to be incorporated into the criminal law of the Netherlands
Antilles. In the second place, incorporation into the criminal law
of the Netherlands Antilles also serves to determine the maximum
penalty which may be imposed for the offence.

E. Authorities having jurisdiction and remedies

20. Certain
fundamental rights may only be restricted by law passed by the Government
(the Governor and Council of Ministers) and the Parliament of the
Netherlands Antilles. This means that the administration of each
of the five island territories of the Netherlands Antilles is not
empowered to impose such restrictions.

21. As
an organ of the Government of the Netherlands Antilles, the Governor
may annul any regulation by an island territory administration which
restricts the individual in the exercise of his basic rights. If
the Governor does not annul such a regulation, any individual may
institute legal proceedings, whereupon the court may declare the
regulation inoperative because it conflicts with an overriding provision
(for example, of a Covenant, the Constitution, or a law or Governor's
decree).

22. As
a representative of the Kingdom of the Netherlands, the Governor
may propose that the Queen as Head of State of the Kingdom, suspends
or annuls any administrative measure enacted by the Government of
the Netherlands Antilles which contains provisions violating human
rights and freedoms. Thus, if in his opinion an administrative measure
is in violation of an overriding provision and should be suspended
or annulled, he will not enact it.

23. The
courts in the Netherlands Antilles may scrutinize any Government
conduct and even legislation in order to ensure that it is in accordance
with the Covenant. Recourse to the courts in the Netherlands Antilles
in connection with human rights matters is guaranteed by the Constitution
and by the laws and statutory instruments enacted thereto. Thus,
even if the Governor does not propose that the Queen suspend or
annul an administrative measure enacted by the Government of the
Netherlands Antilles, the court may declare the measure inoperative
at the request of any person whom the measure unlawfully restricts
in the exercise of his or her basic rights.

24. The
Governor may propose that the Queen suspends or annuls laws which
contain provisions violating the provisions of the Covenant, in
the same way as for administrative measures. Any legislation of
the Netherlands Antilles which contains such provisions can also
be examined by the courts in the light of the Covenant and declared
inoperative.

25. Under
the law of the Netherlands Antilles, the power to institute criminal
proceedings lies solely with the Public Prosecution Department.
The individual citizen is not entitled to institute such proceedings,
although he or she may lodge a complaint with the court, accompanied
by a request that it institute proceedings.

26. The
criminal procedure of the Netherlands Antilles is governed by what
is known as the expediency principle, which means that the Public
Prosecution Department may decide not to prosecute in a particular
case for reasons of public interest. However, under article 26 of
the Code of Criminal Procedure, any interested party may lodge a
complaint with the Court against such a decision. The Court then
hears the reasons not to prosecute and decides completely independently
in giving the Prosecution Department an order to prosecute.

F. Impeding factors and bottlenecks with regard to the
implementation of the Convention

1. The
delay in the Parliamentary handling of the New Penal Code

27. By
national decree of 8 July 1985 a committee was set up with a view
to revising the Penal Code of the Netherlands Antilles. It was the
task of the

committee
to advise the Government as to the modifications and the innovations
to be introduced into both codes for the purposes of modernizing
and improving them and of adapting them to the commitments made
under the Convention and the social situation desired.

28. In
1986 Aruba obtained the status of an autonomous country within the
Kingdom. With this Aruba also acquired her own Parliament.

29. The
Committee in Charge of the Revision of Criminal Law was granted
the status of a committee set up by both countries (Aruba and the
Netherlands Antilles). The Aruban Parliament was granted the opportunity
to get acquainted with the bill for revision of the Criminal Code
by means of workshops organized by the Committee. Since the Cooperation
Arrangement between the Netherlands Antilles and Aruba (Publication
Sheet 1985, 88) stipulates that the Criminal Code of both countries
must be settled concordantly and that the law of criminal procedure
must be uniform, the

committee
was assigned the task of advising both Governments.

29. At
the time of submission of the bill to the Parliaments of both countries
during the year of session 1987-1988 the Committee was composed
as

H.L.
Peloz LL.M., Criminal Law Lecturer at the University of the Netherlands
Antilles,

D.A.
Piar LL.M., Chief Public Prosecutor, Netherlands Antilles;

F. Wernet
LL.M., Attorney-General of Aruba;

J.Th.
Wit LL.M., Member of the Court of Justice of the Netherlands Antilles
and Aruba;

Secretary: T.M. Schalken, Member of the Joint Court of Justice,
at present Professor of Criminal Law and Law of Criminal Procedure
at the Vrije Universiteit of Amsterdam;

Assistant-secretary:
Mrs. H.M. Gorsira-van den Adel LL.M.

30. In
1988 the Committee submitted a bill to Parliament. It was the intention
to initiate revision of the Criminal Code following parliamentary
approval of the Revised Code of Criminal Procedure. Since Parliamentary
handling of the Revised Code of Criminal Procedure will probably
be most time consuming, due to the complexity of the subject-matter
and the lengthy procedure for attaining a Uniform Federal Decree,
it is unlikely that the Committee will be able to make a start on
the revision of the Criminal Code in the near future. This has consequences
for the penalization of the criminal offence of torture, which as
specified in the initial report, should have been effected in the
Criminal Code. As a result of the enormous delay in the handling
of the Revised Code of Criminal Procedure it no longer appears attainable
in the immediate future to penalize the criminal offence of torture
by means of the Revised Criminal Code. A decision will be made in
favour of a separate penalization of the criminal offence of torture
in connection with the implementation of article 1 of the Convention,
as an expedient to resolve this bottleneck.

2. The
lack of a department of justice for coordinating the implementation
of the Convention.

31. Almost
all the government instances involved in the implementation of this
Convention fall under the jurisdiction of the Minister of Justice
of the

Netherlands
Antilles. The Minister of Justice, however, has, up until now, not
had a department which could function as a coordinating entity with
regard to the implementation of the Convention. After a two-year
period of preparation the new Department of Justice will become
operational shortly and will be able to contribute to a more specific
implementation of this Convention.

3. Lack
of funds for the organization of courses

32. Owing
to financial constraints, corrective intervention on a structured
basis is lacking with regard to training and courses for executive
government

personnel
which is geared to the norms that can be deduced from this Convention.
Article 10 is referred to as a solution to this bottleneck.

II. INFORMATION RELATING TO THE ARTICLES IN PART I
OF THE CONVENTIONArticle 1

33. The
Netherlands Antillean Law does not expressly prohibit torture. It
does, however, contain provisions which make acts prohibited under
the Convention punishable as offences. There is no doubt that acts
which come under the description of the term "torture"
in article 1 of the Convention are already offences under existing
Netherlands Antillean legislation, more specifically under the provisions
of the Criminal Code referring to assault occasioning bodily harm
and serious assault (arts. 313-319). New circumstances, however,
have compelled the independent penalization of torture. The decision
to draft a separate act has been taken for the following reasons:

(a) The
penalization of the criminal offence of torture should have been
effected by means of the Revised Criminal Code and the Code of Criminal
Procedure. As a result of the enormous delay in the parliamentary
handling of the Revised Code of Criminal Procedure it is no longer
immediately possible to penalize torture by means of the Revised
Criminal Code;

(b) Article
39 of the Charter stipulates that the criminal law must be arranged
on a concordant basis within the Kingdom. The Netherlands have already
introduced the independent penalization of torture. Considering
the aforementioned, the Netherlands Antilles will also opt for this
course;

(c) Torture
may take forms which cause extreme pain or mental anguish without
leaving any trace of physical or mental injury. For this reason,
the use of the specific term "serious assault" would be
inadequate for the implementation of the Convention. Therefore,
executive legislation will be required for the implementation of
article 1 of the Convention.

34. The
Convention also requires that a number of special provisions be
established governing cases in which assault qualifies as torture.
These are:

(a) The
establishment of universal jurisdiction;

(b) That
no grounds for immunity from criminal liability based on the fact
that an official order or a statutory provision is involved may
be allowed;

(c) That
the offence be classified as one for which extradition may be requested
and that extradition requests be allowed from other parties to the
Convention in respect of this offence, even where no extradition
treaty has been concluded with such parties;

(d) The
provision of legal assistance in cases involving this offence, including
cases in which national legislation requires that such assistance
be given on the basis of an international agreement and where no
agreement governing legal assistance has been concluded with the
other parties to the Convention.

These special
provisions will be established in the separate Act. At present,
a bill concerning the implementation of the Convention against Torture
is in its preparatory phase.

Article 2
A. The police

35. In
1991 the Government of the Netherlands Antilles undertook the first
steps to examine one form of torture or inhuman treatment or punishment,
namely inadmissible application of force on the part of the police.
A committee consisting of, among others, a representative of the
Curaçao Bar Association and a representative of the Human Rights
Committee of the Netherlands Antilles, was instructed by the Minister
of Justice to conduct an investigation as to alleged illegal conduct
on the part of the police. The committee was also instructed to
conduct an investigation with regard to the functioning of the complaints
committee, set up by national decree of 12 November 1985. The committee
was headed by the former Governor of the Netherlands Antilles, Dr.
R. Römer, a Professor in Sociology at the University of the Netherlands
Antilles.

36. The
committee had the investigation of citizens' experiences of police
brutality carried out by the Scientific Research and Documentation
Centre of the Justice Department in The Hague. In its report the
committee indicated that the results cover the period from 1 January
1990 to 31 March 1992. The fact that Amnesty International also
examined allegations of police brutality in the Netherlands Antilles
over this very same period was of the utmost importance (Römer Committee
report, p. 46).

37. The
most important results of the investigation, in which a substantial
random group of 2,248 respondents were interviewed about their possible
experiences as victims of police brutality, paint the following
picture. Of those interviewed 2.5 per cent (57 persons) declared
that they had been ill-treated by the police. Between 1 January
1990 and 31 March 1992 1 per cent (29 persons) had personally experienced
police brutality. Of those cases of police brutality the majority
can be classified as force applied on the street; in the other cases
force was applied in the home, at the police station or somewhere
else.

38. The
committee drew the conclusion that there was no structural ill-treatment
of the citizen on the part of the police. In the case of force applied
on the street a clear pattern could be observed (Römer Committee
report, pp. 49-54):

(i) The
police officers involved did not always seem to be in a position
to cope adequately with potential situations of conflict between
citizens;

(ii) With
regard to the arrest of suspects, force was often applied in reaction
to the opposition of the suspect.

39. Also,
according to the committee, there was no structural pattern of force
on the part of the police at the time of the interrogation. However,
a few incidents can be derived from the results of the investigation
(Römer Committee report, p. 48). In its final analysis, the Committee
pointed out that even though there was no structural police brutality,
the results of the investigation project an incongruous image.

40. On
the basis of the results of the investigation the committee made
the following recommendations:

(i) The
foundation of a department of justice and a police board;

(ii) The
appointment of a complaints committee;

(iii)
The stepping up of the internal supervision of the police force
by the Public Prosecution Office;

(iv) The
appointment of a national criminal investigation department to trace
criminal acts committed by police officers;

(v) The
optimization of police training, in-service training and continuing
education, and the introduction of a course on human rights and
social skills.

The recommendations
made by the committee in large part correspond with the measures
already taken by the Government of the Netherlands Antilles with
regard to the implementation of the Convention against Torture.

41. In
relation to inadmissible force on the part of the police, the following
legal measures have either been taken or are in preparation:

(a) In
the National Decree governing the Complaints Committee as to Police
Conduct, which recently entered into force (Publication Sheet 1994,
5), the committee was granted authorization to conduct investigations
independently. The committee consists of one physician, one law
lecturer of the University of the Netherlands Antilles, and a former
public prosecutor (Appendix I);

(b) A
bill is in preparation regarding the setting up of a national criminal
investigation department which, falling directly under the jurisdiction
of the Attorney-General, will operate as an independent investigation
apparatus with regard to criminal cases against civil servants and
authorities, among others the police;

(c) At
present a bill concerning the implementation of the Convention against
Torture is in preparation;

(d) A
legal measure for prevention of inhuman treatment or punishment
has recently been concluded in the Bill on Administrative Procedure,
which creates the possibility of bringing in an independent judge
in the case of mistakes at the administrative level, also on the
part of civil servants;

(e) A
bill is in preparation concerning the appointment of an independent
Ombudsman to whom complaints could also be submitted in cases of
malfunctioning of the Complaints Committee, the National Criminal
Investigation Department and the Judicial Power.

42. As
a means of preventing torture, the following measures have been
taken at the managerial and policy levels:

(a) In
1993 the Department of Justice was officially established. This
Department will soon have a police board at its disposal which will
advise the Minister of Justice as to police policy and management.

(b) To
optimize supervision on the part of the Public Prosecution Office,
a public prosecutor at the Office has been appointed as coordinator
for complaints with regard to inadmissible force applied by the
police. The operating procedure is as follows. A complaint is submitted
by the victim or the examining magistrate. The examining magistrate
makes mention of the complaint in the report of the interrogation
and forwards the report to the Public Prosecutor. The Public Prosecutor
in turn requests the police force to conduct an investigation into
the alleged inadmissible application of force by members of the
police force. Owing to the fact that an investigation of such a
nature is somewhat delicate and because it also takes a long time
to achieve the necessary results, a pilot project was set up on
the island of St. Maarten, in which the Public Prosecutor himself
conducts the investigation, and thus effects the interrogation.
However, the large majority of cases regarding police brutality
are dismissed owing to lack of proof. At present a bill is being
prepared for the establishment of a national criminal investigation
department to optimize the quality and pace of investigation. This
independent service, completely isolated from the police force at
the organizational level, will serve as an investigation apparatus
in criminal cases against civil servants, such as police officers
and prison personnel. The registration of legitimate complaints
and those that have been dismissed is effected at the Public Prosecution
Office and divided according to the various departments of the police
force.

43. As
a means of monitoring the process, the Public Prosecutor immediately
contacts the chief of the department concerned in the event of an
unacceptable amount of legitimate and dismissed complaints regarding
that department. The result of this monitoring process is that the
investigations into police brutality are completed at a faster pace
and the complaints filed per department will decrease in number.

B. The House of Detention

44. As
a means of preventing torture and other forms of inhuman treatment
or punishment certain steps have been taken with respect to the
House of Detention/Prison.

45. In
1991 a study group was appointed by Ministerial Decree of 24 June
1991 of the Minister of Justice with the task of presenting recommendations
for the optimization of the treatment of detainees in the House
of Detention and to bring the issuing of instructions within the
institution into conformity with the conventions which are in force
for the Netherlands Antilles. A draft report has already been completed.
The final recommendations will be presented shortly to the Minister
of Justice. The draft report contains certain recommendations relevant
for the Convention:

(i) Humanization
of disciplinary punishments

Even though
the punishments consisting of handcuffed confinement and
the provision of bread and water have no longer been inflicted
for decades, it was recommended to delete them from the
Domestic Code of the House of Detention (art. 60). Confinement
to the punishment cell or solitary confinement must be reduced
from four weeks to two weeks. Also, natural light must be
allowed to enter into the cell. The detainee must also be
allowed the right to file a complaint with regard to the
disciplinary punishments inflicted on him/her.

(ii) Training,
in-period training and continuing education

The present
training for personnel is unsatisfactory. Up to the present,
training has been based on the philosophy of security. Little
attention has been paid to the aspect of guidance/supervision
of detainees during the training of prison officials. The
new Training Plan for Penitentiary Institutions of the Netherlands
Antilles, concluded in December of 1992, must enter into
effect as soon as possible. However, it can only take place
with the simultaneous implementation of the reorganization
plans, within the framework of which a training programme
geared to the Convention against Torture will be given ample
attention.

(iii)
The Supervisory Committees and implementation of the right to
file a complaint

Pursuant to
the present legislation, the Netherlands Antilles acknowledges
three Supervisory Committees, namely in Curaçao, in Bonaire,
and on St. Maarten. They are presided by a member of the
Joint Court of Justice. The supervisory task of the committees
has been extended over the past years. The performance of
the Supervisory Committees must be upgraded. This shall
be effected by means of the qualitative and quantitative
reinforcement of the Supervisory Committees. The terms of
reference of the Committees must be extended by a procedure
for the settlement of complaints.

46. These
recommendations, which are relevant to the Convention, are expected
to enter into force at the time of the aforementioned reorganization
of the Netherlands Antilles Houses of Detention.

47. In
the meantime, as a means of preventing torture, the following measures
have been taken at the managerial and policy levels:

(i) Instructions
on the application of force

The Prison Management
has issued instructions on the application of force, which
make obligatory the drawing up of a report on all incidents
in which force in any form whatsoever is applied by the
prison guards.

(ii) Optimization
of supervision on the part of the Public Prosecution Office

As a means of
stepping up supervision by the Public Prosecution Office,
the Public Prosecutor acts as the contact person for the
House of Detention, as well as the coordinator for complaints
concerning inadmissible application of force by prison guards.
The operating procedure to this effect is as follows. The
Public Prosecutor is informed of the complaints by means
of uncensored correspondence with the prisoner, or verbally
via, among others, fellow detainees, who are aware of any
cases of application of force. The Public Prosecutor subsequently
sends these complaints on to the prison management for investigation.
As a rule, the prison management is usually aware of the
incident as a result of internal reporting. Each incident
is investigated. The Public Prosecutor also assesses the
situation in the House of Detention and then talks with
the prison management, by means of which it is decided whether
the case will be settled at a disciplinary or a criminal
level. In the event of criminal pursuit, the Public Prosecutor
calls in the assistance of the police for the criminal investigation.
In such instances also the National Criminal Investigation
Police play an important role.

Reorganization of the House of Detention

48. It
should be stated that the House of Detention is overcrowded. The
present space and provisions can be considered inadequate. The regime
does not meet modern standards, by which much emphasis is placed
on supervisory guidance. Consequently, the Government decided to
reorganize the House of Detention and to provide better training
and supervisory courses for all personnel. An interim manager has
been called in from the Netherlands, who will help pave the way
for the reorganization process.

Improvement of the prison system

49. The
Government of the Netherlands Antilles also gives high priority
to the improvement of the prison system. Subsequently, plans were
drawn up to create a forensic observation and guidance section for
the Convict Prison and the House of Detention (abbreviated as FOBA),
on the island of Curaçao.

50. FOBA
has been instituted and is a type of "intensive care"
section of the Convict Prison and the House of Detention, for the
benefit of any prisoner whose behaviour is found to be characterized
by such maladjustment as to occasion serious problems in the Convict
Prison and the House of Detention. The only criterion for hospitalization
in FOBA is the existence of a crisis, either if the prisoner himself
experiences a crisis (be it acute psychosis, depression, suicidal
inclinations), or when a disturbance is caused by obstreperous conduct.
The section is divided into two wards: the observation and the guidance
unit. FOBA is a project of joint cooperation between the prison
and the Psychiatric Clinic of the Netherlands Antilles. Expertise
is made available to FOBA by the Clinic.

51. In
cooperation with the prison doctors and the pathologist of the national
Laboratory a protocol is being developed to conduct the required
investigation in a responsible manner and to coordinate relevant
activities between the Public Prosecution Office and the prison
doctors, in the event of police brutality or ill-treatment on the
part of prison guards.

52. As
a means of preventing inadmissible application of force in the House
of Detention, the National Decree Bill on Principles for the Prison
System in the Netherlands Antilles has been submitted to Parliament.
This forms a basis for the drafting of a prison decree, as a means
of elaborating the aforementioned national decree. Through this
new legislation the possibility is created to have the Supervisory
Committee act as a complaints committee. Parliamentary handling
of this legislation project, which serves as modernization of the
penitentiary right, has not yet been completed.

53. A bill
is in preparation regarding the establishment of a national criminal
investigation department, which would act as an investigation entity
in matters which concern criminal cases against, among others, prison
guards.

Judicial verdicts

54. There
is a judicial verdict relating to inhuman punishment in the House
of Detention, namely the C.S. Rietwijk case. In July 1991,
a number of detainees demanded the abolition of solitary confinement
in the punishment cell ("cachot") by instituting summary
proceedings to this effect (KG 209/1991). Even though the demand
was rejected, the court of first instance established that solitary
confinement might not be inflicted for a longer period than two
weeks and that the cell in question must have sunlight/daylight.
Ever since, that requirement has been complied with. It may be assumed
that solitary confinement in the punishment cell meets the judicial
norms of the Convention since the verdict was pronounced in the
C.S. Rietwijk case (Appendix II).

55. The
fact that the physician associated with the institution is only
present in the House of Detention from 2 to 5 p.m. two afternoons
per week was considered insufficient by the judge, who considered
that medical treatment did not meet reasonable requirements of meticulousness.
The Government of the Netherlands Antilles was assigned to see to
it that there is at least a 15-hour medical consultancy period throughout
the week in the institution concerned. The Government complied with
the aforementioned by assigning a second physician. At present the
demand of the Court is being amply met.

Article 2.2

56. The
following international conventions which are specifically related
to time of war and political instability are in force for the Netherlands
Antilles:

The Geneva Convention
regarding the Amelioration of the Condition of the Wounded and
Sick in Armed Forces in the Field (12 August 1949);

The Geneva Convention
for the Amelioration of the Condition of Wounded Sick and Shipwrecked
Members of Armed Forces at Sea (12 August 1949);

The Geneva Convention
relative to the Treatment of Prisoners of War (12 August 1949);

The Geneva Convention
relative to the Protection of Civilian Persons in Time of War
(12 August 1949);

Protocols I and
II Additional to the Geneva Conventions of 12 August 1949, and
relating to the Protection of Victims of International Armed
Conflicts (Bern, 12 December 1977);

Convention on the
Prevention and Punishment of the Crime of Genocide (Paris, 9
December 1948).

57. By
means of the aforementioned Conventions the Netherlands Antilles
have committed themselves to observe and respect the laws and norms
of war and to render violation of such punishable. The executory
legislation to this effect is the Decree of 16 June 1954 with regard
to the handing over to the corresponding authorities of those who
allegedly committed war crimes which concern the Netherlands Antilles.
The Conventions can also be executed by means of the Genocide National
Executory Decree, dated 2 February 1993 and by means of the Criminal
Code (vol. 2, Titles 1 and 11).

58. The
bill for the implementation of the Convention against Torture will
specify that war and political instability are not exceptional circumstances
for the application of torture.

Article 2.3

59. As
specified in the general section of this report and in the section
on article 1, the Netherlands Antilles has opted for independent
penalization of the criminal offence of torture. A bill on the implementation
of the Convention is in preparation in which it will be specified
that an order from a superior officer or a public authority (art.
45 of the Criminal Code), or a statutory provision (art. 44 of the
Criminal Code) are not applicable as grounds for immunity from criminal
liability in the case of the criminal offence of torture.

Article 3

60. In
accordance with article 5 of the Constitution of the Netherlands
Antilles, rules on the admission, residence and expulsion of Dutch
citizens and aliens must be established by law. Restrictions on
freedom in these respects can therefore only be imposed by law.
The full text of the rules concerning admission, residence and expulsion
is contained in the Admission and Expulsion Act.

61. The
authority who, in the framework of the Federal Decree on Admission
and Expulsion, decides on deportation, expulsion, and possible return
of foreigners, is the Lieutenant-Governor.

62. Aliens
applying for admission to the Netherlands Antilles in principle
await the decision at first instance on their case in their own
country. If their application is dismissed, they may request a review.
When the Government has decided to expel an alien, he/she may lodge
an appeal before the civil courts on the grounds of a potential
tort on the part of the local authorities. In these cases, aliens
may await the result of this procedure in the Netherlands Antilles.
Aliens who have previously obtained a residence permit, of which
the validity however is expired, may have recourse to the legal
remedies described above. In all these cases the review of the decision
may be awaited in the Netherlands Antilles.

63. Deportation
has an inexorable character. In the event of deportation there is
only one means of coercion, namely the detention of aliens. Expulsion
and deportation are always to be effected to the country of choice.
It is only in the event that the travel documents of the alien concerned
are not in order that he/she is returned to his/her country of origin.
Contacts with the highest judicial authorities in the region are
such that insight can be gained as to whether or not there is danger
of torture in the event of return. There have been no cases of deportation,
expulsion or return which are in contravention of article 3 of this
Convention.

Extradition

64. Extradition
of aliens in accordance with article 4 of the Constitution of the
Netherlands Antilles is only possible pursuant to a treaty. The
Extradition Act of the Netherlands Antilles contains rules concerning
the incorporation of extradition treaties. According to the text
of both the Constitution of the Netherlands Antilles and aforementioned
Act only aliens can be extradited, and this only pursuant to a treaty.
On the other hand, extradition cannot take place in the case of
political crimes or in other circumstances related to political
crimes.

65. The
Court of Justice decides on the admissibility of a request for extradition,
and appeal for cassation can be made to the Supreme Court. Once
a request has been declared admissible, the Governor of the Netherlands
Antilles decides whether it is appropriate to grant the request,
bearing in mind the various international agreements which may be
applicable.

66. Extradition
will not be allowed in cases where, in the opinion of the Governor,
there are grounds for suspecting that if the person concerned is
extradited he/she will be persecuted, punished or will suffer in
some other way on account of his/her religious or political convictions,
nationality, race or the social group to which he/she belongs.

67. An
appeal may be lodged before the civil court against an extradition
order issued by the Governor. Extradition does not usually take
place until the application has been decided upon.

68. The
competent authorities have not received any special training in
order to establish whether the alien returned to his/her country
of origin is subject to torture. The contacts in the region are
such that insight can be gained as to whether or not there is danger
of torture in the country of origin. For this reason the aforementioned
special training is considered unnecessary.

Article
4

69. As
mentioned earlier, acts of torture as described in the Convention
can be dealt with in the Criminal Code of the Netherlands Antilles.
The provisions particularly relating to torture within the meaning
of article 1 of the Convention are: articles 248 and 249 (concerning
sexual abuse); articles 287 to 299 (concerning crimes against a
person's liberty, slavery, kidnapping, assault and battery and unlawful
threat, the infliction of bodily injury or causing death). Such
offences are punishable with penalties of up to life imprisonment
or temporary imprisonment of 20 years, depending on the gravity
of their nature.

70. However,
defining torture as a form of "serious" assault within
the specific meaning of article 315 of the Criminal Code would in
a certain sense not do justice to the purport of the provisions
of the Convention. In order to satisfy its obligations under the
Convention, the Netherlands Antilles will formulate a separate offence
of "torture" and incorporate it in a separate Act which
provides for exceptions to generally valid principles of criminal
law in respect of this offence, for instance excluding the offence
of torture from the application of articles 44 and 45 (which grant
immunity from criminal liability where acts are carried out on official
orders or according to statutory provisions).

71. The
fact that the attempt to commit a criminal offence and acts constituting
complicity or participation in offences are also criminal offences
derives from articles 47, 49 and 50 of the Criminal Code. Article
47 states that an attempt to commit an offence is itself an offence
if the intention has been revealed by the offender's starting to
carry it out and if completion of the act was prevented purely by
circumstances independent of the offender's will. Article 49 states
that those who commit a particular offence, cause it to be committed,
participate in the offence or instigate its commission, will be
deemed to be guilty of the offence and punished accordingly. Article
50 states that those who intentionally aid in the commission of
a criminal offence or intentionally provide the opportunity, means
or information which aids the commission of the offence, will be
deemed to be guilty of complicity and punished accordingly.

Article 5

72. The
following articles of the Criminal Code of the Netherlands Antilles
are relevant to the subject of criminal jurisdiction as referred
to in Article 5 of the Convention:

"Article
2

Netherlands Antillean
criminal law shall be applicable to any person who commits a
criminal offence in the Netherlands.

"Article
3

Netherlands Antillean
criminal law shall be applicable to any person who commits a
criminal offence outside the Netherlands on board of a Netherlands
Antillean ship or aircraft.

"Article 5, paragraph
1 (2)

Netherlands Antillean
criminal law shall be applicable to any Netherlands Antillean
resident who perpetrates an act outside the Netherlands Antilles
deemed under Netherlands Antillean criminal law to be an indictable
offence and which also constitutes a criminal offence in the
country in which it is committed.

The establishment
of universal jurisdiction should have been actualized by means
of the Criminal Code and the Code of Criminal Procedure. Due
to the enormous delay in the parliamentary handling of the Revised
Code of Criminal Procedure, this is no longer attainable on
a short term basis."

In order
to implement the second paragraph of article 5, universal jurisdiction
will be established over the criminal offence of torture in a separate
Act implementing the Convention on Torture.

Article 6

73. The
rules of the Code of Criminal Procedure of the Netherlands Antilles
are applicable to offences falling within the jurisdiction of the
Courts of the Netherlands Antilles. By a court's decision a suspect
can be detained or other actions can be taken to ensure his/her
presence, providing the normal conditions applying to such measures
are fulfilled. According to the Extradition Act of the Netherlands
Antilles (Nederlands-Antilliaanse Uitleveringsbesluit P.B. 1926,
No. 61) these measures may also be taken in connection with
extradition, even before a petition for extradition has been submitted.

74. Pursuant
to article 71 of the Code of Criminal Procedure, a preliminary investigation
shall take place as soon as there is cause to believe that an offence
falling in the domain of public prosecution has been committed.

75. In
the case of an offence with respect to which extradition may take
place, the Attorney-General shall, pursuant to the 1926 Extradition
Act of the Netherlands Antilles undertake the necessary investigation
following submission of a petition of extradition. At an earlier
stage of the extradition process, when another State has requested
coercive measures with respect to a suspect, a preliminary investigation
of the facts is made following a Court order to that effect. Since
16 January 1986 the Vienna Convention on Consular Relations is in
force for the Netherlands Antilles. In accordance with this Convention
the competent authorities of a State party shall inform the relevant
consular post if a national of another State is detained, if this
is requested. In the Netherlands Antilles this information is submitted
automatically after the detention of a foreigner. A consular employee
has unconditional access to a fellow national who is detained.

Article 7

76. The
Criminal Code and the Code of Criminal Procedure contain provisions
allowing the authorities of the Netherlands Antilles to take measures
to prosecute in cases of criminal offences which fall within the
jurisdiction of the Courts in the Netherlands Antilles. Cases referred
to in paragraph 1 of article 7 shall therefore be submitted to these
authorities for the purpose of prosecution, if the persons concerned
are not being extradited to the requesting State party.

77. Following
the implementation of article 5 of this Convention, namely universal
jurisdiction, it becomes imperative that the accused be handed over
to the corresponding local authorities, in the event of non-extradition
to a State party.

78. Pursuant
to paragraph 2 of article 7, the competent authorities shall take
their decision in the same manner as in the case of any ordinary
offence of a serious nature. The law and practice of the Netherlands
Antilles are in conformity with this provision. A person against
whom proceedings are taken in the case of an offence as referred
to in article 4 is treated in the same way as other offenders and
will consequently be guaranteed fair treatment by the general provisions
on legal proceedings in criminal cases.

79. There
are no special rules of procedure laid down with regard to the furnishing
of evidence or the position of the suspect.

Article 8

80. This
article concerns obligations relating to extradition for the offences
referred to in the Convention.

81. Extradition,
as mentioned earlier, is regulated by the Extradition Act of the
Netherlands Antilles and is only possible pursuant to a treaty.

82. The
Netherlands Antilles is bound by a number of bilateral treaties,
which apply to the so-called "enumeration system", whereby
offences for which extradition may be requested are listed by name.

83. The
Netherlands Antilles is party to the various Conventions concerning
extradition of aliens, inter alia the Convention on Extradition
of Criminals between the United Kingdom of Great Britain and Northern
Ireland and the Kingdom of the Netherlands and the Convention on
extradition between the United States of America and the Kingdom
of the Netherlands.

84. Article
2 of the Extradition Act specifies certain conditions for offences
with respect to which extradition is requested: they must be punishable
under the law of the Netherlands Antilles by more than one year's
imprisonment; if a person has been convicted, the penalty must not
be less than four month's imprisonment. If extradition is requested
for several offences, it is sufficient if one of the offences satisfies
these requirements. Torture normally comes under those offences
whose scales of penalties, as laid down in the Criminal Code, are
sufficient to satisfy the requirements of the Netherlands-Antillean
Extradition Act and which are thus extraditable under Netherlands
Antillean Laws. According to the Extradition Act, extradition can
be refused if an offence has a political nature. Pursuant to the
different Conventions to which the Netherlands Antilles is bound,
the right is reserved to refuse extradition if the offender risks
persecution which is directed against his life or health, or on
humanitarian grounds. Such impediments are considered by both the
Court of Justice and the Government of the Netherlands Antilles.

85. The
Convention compels the State parties to the Convention to extradite
on the basis of article 8, paragraph 2, in the event that there
is no extradition convention between the parties. As a means of
implementing article 8, paragraph 2, the executive legislation provides
that, on the basis of article 8, extradition can take place between
States which are parties to the Convention against Torture.

86. The
legal fiction contained in the first sentence of article 8, paragraph
1, is directly applicable in connection with the countries with
which the Netherlands Antilles has concluded a treaty, provided
that they are also party to the Convention.

87. Paragraph
4 of article 8 has no significance for Netherlands Antillean law.
The Netherlands Antillean Extradition Act contains no provisions
limiting the possibility of extradition in connection with the place
where the offence for which extradition is being requested was committed.

Article 9

88. The
Netherlands Antilles grants a great deal of assistance, in connection
with criminal proceedings, to other States. In general, assistance
can be given to a foreign State irrespective of whether an agreement
on judicial assistance has been concluded with that State or not.

89. In
cases where the granting of a request would involve the use of coercive
measures, the request may only be granted if it is based on a treaty.
Such a basis is provided in this context by article 9 of the Convention.

90. The
Netherlands Antilles is bound to the various conventions on mutual
judicial assistance in criminal matters, inter alia, the
Convention between Belgium, Luxembourg and the Kingdom of the Netherlands
concerning extradition of criminals and the Convention between the
United States of America and the Kingdom of the Netherlands on mutual
assistance in criminal matters.

91. In
the bill concerning the total revision of the Code of Criminal Procedure,
which has been submitted to the Parliament of the Netherlands Antilles
for approval, a new part concerning international judicial assistance
has been incorporated. In this part the grounds for refusal of a
request for judicial assistance are established and a special regulation
concerning hearing by foreign police officers is inserted.

Article 10

92. During
the training of police and prison officers, particular attention
is paid to the humane treatment of suspects and detainees. Much
time is devoted to acquainting such personnel with the laws and
regulations governing their work.

93. During
the training of police and prison officers, and forensic instructors
in the prison (FOBA), particular attention is paid to the legal
position and the treatment of suspects and detainees. By means of
the exact sciences particular attention is paid to the instructions
on the use of force, the admissible and inadmissible application
of force. Despite the aforementioned it can be concluded that the
present training is insufficient and needs to be modified. In 1992
the management of the House of Detention presented a new training
programme. This training programme will form part of the recently
initiated reorganization process to be implemented in the House
of Detention.

94. In
recent years social changes have been taking place in the Netherlands
Antilles which have influenced the way of thinking of its citizens
as to the manner in which police tasks are carried out. Specific
reference is made to the manner in which police duties are carried
out, which, besides a more pragmatic than formal maintenance of
the law, is geared to helpfulness to and a relationship of confidence
with the public. In this connection the police force management
developed a policy regarding the interpretation of the police task
by the force and its officers throughout the 1990s. The aforementioned
led to a petition for a consultancy specialized in organization
and training development and the integration of programmes with
regard to conduct training during both initial and advanced training
of the Netherlands Antilles Police Force. On the basis of the aforementioned
the consultancy introduced a project plan (PROFIPOL).

95. In
this plan special attention is given to the training, professional
as well as non-vocational, of police officers, to provide them with
the knowledge and teach them the attitudes and skills through ongoing
activities to enable them to work as good police officers should.
A mental attitude aimed at dispelling unrest and feelings of being
unprotected, and at approachability, and "customer"-friendliness,
preparedness and responsiveness in rendering services and respect
for civil equality in the right to protection, are established as
points which should be given priority. Owing to the lack of funds
for implementing this project, the Minister of Justice opted for
execution in various phases.

96. The
Federal Decree containing general measures, dated 23 December 1977
(Publication Sheet 1977, 353) governs the selection and training
of the judicial officers. A selection committee consisting of, among
others, the President of the Judicial Faculty of the University
of the Netherlands Antilles, selects eligible candidates and subsequently
submits a recommendation to the Minister of Justice. The party recommended
by the selection committee can be admitted to the basic training
for judicial officers. The trainee will be admitted for a two-year
work period to the Secretariat of the Court of Justice. In the case
of a favourable evaluation of his or her activities during a specific
period, the party concerned will then be admitted to the Public
Prosecution Office for a further two-year work period. He or she
will subsequently go to the Netherlands for a one-year training
period, employed at the secretariat of a court and at the Public
Prosecution Office. Throughout the sojourn in the Netherlands the
judicial officer will take a number of courses at the "Stichting
Studiecentrum Rechtspleging" (SSR) (Foundation pertaining to
the Study Centre for the Dispensation of Justice). The foundation
in question provides training for members of the judiciary and for
judicial officers during the period of in-training.

97. On
returning to the Netherlands Antilles, the judicial officer, in
accordance with his or her preference, can be employed either at
the Court of Justice or the Public Prosecution Office. After a one-year
period at the most, and in the event of a favourable evaluation,
the appointment to judge or public prosecutor will be effected.

Article 11

98. Interrogation
of suspects and others is regulated in the Code of Criminal Procedure.
An interrogation shall be carried out as soon as possible to prevent
anyone indicated as a suspect from being exposed to unnecessary
suspicion or inconvenience. General instructions on how to perform
interrogations are given to the police in the Code of Criminal Procedure.
Promises, false information, threats or force must not be used.

99. Another
very important aspect is the supervision of the way the police force
operates. Besides an internal inspection within the police organization
itself, the prosecuting authority is also responsible for inspection
of the functioning of the police. The said supervision takes place
by means, for example, of assessment in a report by the Public Prosecutor
and of monitoring the complaints regarding police brutality. In
this respect, what has been stated in the section on article 2 in
the present report should be taken into account.

100. Under
article 3 of the Organization of the Judiciary (Publi-cation Bulletin
1989, No. 170) the Prosecuting Authority is responsible for law
enforcement. This provision is given a fairly broad interpretation
and is construed as enforcement of both law and the legal order.

101. Also
worth mentioning is the fact that, in anticipation of a total revision
of the Rules on the Use of Weapons now in force for crime detection
officers, the possibility of using weapons was already limited by
Official Order of 6 March 1989, at the insistence of the Prosecuting
Authority. Under that Official Order crime detection officers were
given additional instructions to use a firearm only in cases of
extreme necessity against persons whose identity is unknown and
who are suspected of a serious crime and are trying to avoid arrest.
All police officers have been provided with a copy of this order
and have had to sign for its receipt.

102. As
a result of a recent criminal case against a member of the police
force who was sentenced for illegal arms use, the Public Prosecution
Office organized information sessions for the entire police force
with a view to explaining and interpreting the instructions on the
use of force (see annex III).

103. There
is a Supervisory Board for the Prison and Houses of Detention; that
Board has at least three and no more than seven members. Its duties
are:

(a) The
exercise of supervision over all matters concerning the institution,
particularly the treatment of prisoners and the observance of the
rules and regulations;

(b) To
submit recommendations to the Minister, ex-officio or on request,
on matters concerning the institution;

(c) To
inform the prison director of its opinion and offer him suggestions.

An independent
judge is chairperson of that Supervisory Board. The Board and its
members have access at any time to all places where prisoners are
kept and they need no specific consent from the prison director
for their entry.

Through
personal contact with the prisoners the Board keeps itself informed
on a regular basis of the prisoners' wishes and feelings. The prison
is inspected once a month and this is usually done unannounced.

104. The
supervisory task of the Committee has become most extensive in recent
years. Its functioning must be optimized.

105. Apart
from the Supervisory Committee, there is also super-vision by the
Public Prosecution Office, as speci-fied in the section on article
2 (p. 21).

106. Mention
is also made of "supervision" in the event detainees approach
the judge, as in the Rietwijk Case (1991), in which various detainees
demanded a handling of their case in conformity with the legal stipulations
of the Convention.

Article 12

107. Pursuant
to the Code of Criminal Procedure of the Netherlands Antilles a
preliminary investigation shall be initiated as soon as there are
causes to believe that an offence has been committed. The preliminary
investigation can be initiated by the police or the Public Prosecutor
(arts. 32 and 34 of the Code of Criminal Procedure). According to
the Code the Public Prosecutor has responsibility for all criminal
investigation. Under Netherlands Antillean law the Public Prosecution
Office has the exclusive right to institute criminal proceedings.
It also decides whether in specific cases proceedings should be
initiated or pursued.

108. In
cases where criminal investigations require that certain investigation
procedures be carried out, such as the summoning of witnesses for
examination, the carrying out of house searches or the application
of other coercive measures, a preliminary judicial examination will
be initiated by the examining magistrate on the instructions of
the Public Prosecutor. The examining magistrate is a member of the
judiciary and is independent and impartial. The judge's duty is
to prepare the case for the hearing before the court. He does not
himself take part in that hearing. A preliminary judicial examination
can be opened before the identity of the suspect is known.

109. The
requirement contained in article 12 of the Convention, that a "prompt
investigation" be carried out, is guaranteed by the obligation
deriving from article 6, paragraph 1 of the European Convention
on Human Rights, which states that "in the determination ...
of any criminal charge against him, everyone is entitled to a ...
public hearing within a reasonable time ...". Under Netherlands
Antillean law this obligation is directly applicable.

Article 13

The
police

110. In
1985 the Government of the Netherlands Antilles assigned a special
committee for the investigation of cases brought against police
officers.

111. This
committee was not able to operate at optimal level due to lack of
investigative authority. They also had a limited mandate, as a result
of which its activities in practice amounted to a type of supervision
over the internal handling of complaints of the police organization.
Because of this it became impossible to implement the right to file
complaints by means of administrative procedures.

112. With
regard to the administrative procedures for filing complaints, a
substantial improvement has been achieved. Recently the Federal
Decree governing the Complaints Committee as to the Conduct of Police
(Publicat-ion Sheet 1994, no. 5) became effective and the Committee
was granted authorization to carry out investigation activities
independently (appendix I).

113. Under
the Code of Criminal Procedure, the right to complain consists of
the right to filing of complaints in accordance with article 12
of the Code and the right to file a complaint with the corresponding
judicial authorities, in accordance with article 26 of the Code,
in the event that no legal prosecution takes place.

114. Access
to criminal procedure as well as the right to file complaints for
victims of unnecessary police brutality could be improved. At present
there is an undesirable situation whereby colleagues in the police
force are in charge of the criminal investigation. The bill for
the institution of the National Criminal Investigation Department,
which will fall directly under the jurisdiction of the Attorney-General,
will offer a greater guarantee of an independent and objective investigation
in the event of the filing of a complaint.

The
House of Detention

115. Procedure
concerning the right to file complaints for victims of inadmissible
use of force in the House of Detention can be improved. The detainee
in question informs the coordinating Public Prosecutor with regard
to his complaint and his/her wish to make a declaration to this
effect by means of uncensored correspondence. The Public Prosecution
Office aims at having the declaration of the detainee conveyed verbally
to a member of the police force as soon as possible. Owing to pressure
of work there can be some delay before the actual declaration is
made. To guarantee an independent and rapid handling of such cases
a national criminal investigation department must be established,
which will fall directly under the jurisdiction of the Attorney-General.

116. At
present there are no administrative procedures in connection with
the right to file a complaint, because a complaints committee is
entirely lacking in the House of Detention/Prison. As a means of
modernizing this right of detainees, in 1988, the setting up of
a complaints committee for the House of Detention/Prison was proposed
in the Bill for the Establish-ment of the Principles of the Prison
System in the Netherlands Antilles. This bill has been for-warded
to Parliament. Upon its adoption the right to file a complaint can
be exercised by means of an administrative procedure.

117. In
principle, all complaints concerning the application of inadmissible
force by the police or the prison guards are investigated further.
The Public Prosecution Office, in principle, orders the police to
conduct an investigation in all relevant cases. The investigation
team often consists of hand-picked members of the police force.
In so far as the complaint results in a criminal case against a
prison guard, or police officer, the issue is further dealt with
at criminal procedure level. In the event the severity of the case
permits, the complaint concerning the application of inadmissible
force can be closed with disciplinary punishment being imposed.
One of the reasons not to investigate a complaint any further, is
if the relevant report clearly indicates that a suspect resisted
arrest, leading to the application of force.

118. The
criteria that the Public Prosecution Office maintains for not initiating
legal pursuit following the filing of a complaint, can be the following.
If there is a justified reason, such as separating two detainees
who are fighting with each other. Also in the case of suspects who
were caught in the act and subsequently fled, generally speaking
no legal pursuit will be initiated in the event of application of
force. Cases in which delinquents act in a most violent manner,
such as the recent case of armed bank robberies, are not eligible
for legal pursuit on the grounds of the application of inadmissible
force by the police. The majority of the cases regarding alleged
inadmissible application of force on the part of the police or prison
guards are dismissed due to insufficient proof. A proposal to optimize
the compilation of proof in these cases involves the setting up
of a national criminal investigation department, which will fall
directly under the jurisdiction of the Attorney-General and will
not form a part of the Netherlands Antilles Police Force (KPNA).
In the event no legal pursuit is initiated on the part of the Public
Prosecution Office after a complaint has been filed, the torture
victim has the right to file a complaint with the court of first
instance in accordance with article 26 of the Code of Criminal Procedure.

Article 14

119. Netherlands
Antillean law provides several means by which victims of crimes
of violence may obtain compensation. Both the Civil Code (art. 1382-1397
d, for damages caused to others) and the Code of Criminal Procedure
(arts. 189-193, for damages caused by the offender) of the Netherlands
Antilles contain provisions with regard to compensation and damages
that ensure that the victim of an act of torture obtains redress.

120. Firstly,
a victim may join in criminal proceedings as an injured party and
make an application for damages.

121. Secondly,
victims seeking compensation on account of any tort may have recourse
to the civil courts. If the tort is alleged to have been committed
by the State or by a public official in the exercise of his office,
the State may be compelled to pay damages.

122. In
the event of death of the victim of an act of torture damages can
be claimed directly from the Government of the Netherlands Antilles
or from an Island Government if that act has been committed by a
government official.

123. There
is no right to medical or psychological compensation, solely financial
compensation. The aforementioned stipulations also concern aliens.

Article 15

124. The
Code of Criminal Procedure of the Netherlands Antilles contains
(arts. 301-307) rules for the judgment of evidence.

125. Under
Netherlands Antillean criminal procedure, not all types of evidence
are admissible, since the law exhaustively lists those which are
(the judge's own observations, statements made by the suspect, witnesses
and experts, and written evidence), while it excludes statements
made by fellow suspects and declares uncorroborated statements made
by the suspect or a single witness to be insufficient. In Netherlands
Antillean criminal case law the doctrine of unlawfully obtained
evidence, obtained by a breach of statutory provisions or in a way
which conflicts with unwritten procedural law, has been developed.
Such evidence may not be used to prove a charge. It is the general
opinion both in legal practice and doctrine that the court shall
not use or give any weight to evidence illegally obtained. Failure
to observe the above regulations leads to the evidence thus acquired
being declared inadmissible.

126. Witnesses
are in principle obliged to make a statement unless they can invoke
a statutory exemption. The obligation is compelling: witnesses at
a hearing under oath and, at the request of the suspect or upon
application by the Public Prosecution Office, the courts have the
power to remand in custody witnesses who without legitimate grounds
refuse to answer the questions put to them or to take the oath (or,
in the case of non-believers, make the affirmation), provided this
is urgently necessary in the interests of the inquiry.

127. The
court may order an immediate criminal investigation if a witness
is suspected of having committed perjury. In no instance is it permissible
to subject witnesses to any coercive measures other than those described
above.

Article 16

128. The
Netherlands Antilles will choose to formulate a separate definition
of the offence of torture. Other forms of cruel, inhuman or degrading
treatment or punishment may be deemed to fall within the definitions
of existing offences in the Criminal Code. These include articles
248 and 249 (concerning sexual abuse); articles 287 to 299 (concerning
crimes against a person's liberty, slavery, kidnapping, assault
and battery and unlawful threat, the infliction of bodily injury
or causing death).

129. The
statements made above with respect to articles 10, 11, 12 and 13
are also applicable to the acts referred to in article 16 of the
Convention.

III. THE CASES REPORTED TO AMNESTY INTERNATIONAL

130. In
1992 Amnesty International approached the Netherlands Antillean
Government in connection with four cases of police brutality which
took place in 1990 and 1991. Amnesty International was provided
with all the required information and an effort was made to shed
light on these cases. With regard to the complaints of Amnesty International
the Government of the Netherlands Antilles has reported the following.

1. The
Henry Kenneth Every case

131. The
facts: In the evening hours on 21 June 1990, police assistance was
solicited for a mad man who was creating a great disturbance on
the public highway in one of the residential areas. A police patrol
appeared on the scene and upon request received reinforcement. The
gentleman was not in his right senses and had to be forcefully subdued.
In a police patrol car the gentleman was then taken to the polyclinic
of the St. Elisabeth Hospital, where he was declared dead upon arrival.

132. The
investigation: Upon the orders of the Public Prosecution Office
Mr. Every's body was immediately seized and instructions were given
to perform an autopsy. At the same time the corresponding police
authorities were instructed to conduct an investigation into the
occurrences. Shortly after this the relatives, father, mother, and
a sister of the deceased, were received by the Attorney-General.
He informed them of the instructions given and also enlightened
them on the investigation procedure, and advised them to contact
the Chief-Prosecutor at any time, since matters were under his personal
supervision. They were also advised to inform the same prosecutor
of the names of bystanders (witnesses), so that they too could be
heard.

133. During
an extensive conversation after the family had indeed established
contact with the Chief-Prosecutor, the names of 11 possible witnesses
were given. In the meantime the official police report had been
submitted to the Public Prosecution Office. At that point the Public
Prosecutor immediately requested the examining magistrate to initiate
an investigation into (one) (still) (unknown) perpetrator(s). In
our legal system such an investigation is conducted solely by the
examining magistrate, independent of all other instances.

134. In
the framework of this investigation the examining magistrate questioned
all 11 witnesses mentioned by the family. In addition, four police
officers who had been present at the time were also questioned.
As a result of this investigation no criminal evidence could be
formulated against any of the police officers, because the vast
differences in their accounts of facts rendered by the witnesses.
The statements given by both the witnesses for the prosecution and
the witnesses for the defence were too dissimilar to allow any criminal
evidence to be derived. Moreover, the autopsy report mentioned a
few external bruises (haemorrhages) on the hands and wrists, which
corresponds with the account given by a police officer who stated
he had hit Mr. Every on those particular areas a couple of times
with a baton, in order to break down his refrac-toriness. There
were also haemorrhages in the cranium (the back part) which could
very well correspond with accounts rendered by witnesses who stated
that Mr. Every purposely threw himself onto the road surface a couple
of times, thus hitting the back of his head on the road surface
and the pavement.

135. As
the direct cause of death the pathologist noted: serious lesions
to the heart, haemorrhage zone and ruptures in the right auricle
of the heart, which in this case could possibly have led to arrythmia,
along with serious lung haemorrhages. This direct cause cannot be
considered as a consequence triggered off by the acts of the police
officers. A toxicological report indicated that the urine of Mr.
Every contained cocaine-metabolite (Benzoyl-ecgnonine) and the cannabinoid
(9THC-COOH).

136. From
the results of the investigation conducted there was no possible
manner of formulating criminal evidence against any of the police
officers.

137. When
the results were obtained the relatives were once again invited
to an interview with the Public Prosecutor. During this conversation
the Public Prosecutor discussed at length the results of the investigations
and allowed perusal of the official police reports and of copies
of both the autopsy report and the toxicological investi-gation.

138. The
Public Prosecution Office immediately instructed that a totally
objective investigation be conducted by the examining magistrate,
informed the family of the procedure once again, and conveyed all
the minute details of the results of this investigation to the aforementioned
relatives.

139. The
conclusions of the pathologist's report were the following:

"Young man with
clinical history of several previous nervous crises. Before
his death he was in a nervous crisis and was trans-ported by
the police to the hospital, and was dead on arrival. The autopsy
showed several trauma lesions (see external examination) including
recent epicranial and sub-arachnoidal haemorrhage in the parieto-occipital
region, which in my opinion was not sufficient to explain his
death. The heart showed also recent haemorrhage area of 2 x
1 cm in proximity with the vena cava; 1 cm below this haemorrhage
were two small lacerations of 1 cm each in the right atrium.

"I think that
the blunt injury to the heart, haemorrhage area and lacerations
(2) in the right atrium which possibly caused arrhythmia, were
the cause of death in this case, associated also with severe
pulmonary haemorrhage. No external lesions were seen in the
thoracic wall, but a rapid increase in intracardiac pressure
may be caused by the sudden displacement of blood into the thorax
from abdomen and lower limbs. This may occur in falls from heights
or traffic accidents; blows on the chest with a heavy object
can also damage the heart."

140. Amnesty
International's reaction to the report of the Public Prosecution
Office was as follows:

"In the first
case, that of Henry Every, the report of the Public Prosecution
Office indicated that he had been arrested on the evening of
21 June 1990 by the police in circumstances where they had to
subdue him and that he reportedly threw himself on the road
several times. The report stated that the cause of death was
serious lesions to the heart and the autopsy report confirmed
this. Your report also stated that 'this direct cause cannot
be considered as a consequence triggered off by the acts of
the police officers'. Professor Pounder, a forensic pathologist,
commented, inter alia, that this first conclusion in
the report is very questionable.

"In this report
to us, he stated that in his opinion Henry K. Every was killed
by some form of crushing injury to the chest. In his view, the
mechanism for inflicting this injury was achieved by a person
dropping their body weight upon the chest of an individual lying
upon the ground. This might have been by stomping, drop-kneeing
or forceful sitting.

"According to
the report, Henry K. Every was in the custody of the police
throughout the relevant period before his death and, therefore,
this type of injury could only have been inflicted by the officers
who had him in custody. In the view of Amnesty International
the responsibility for this injury and subsequent death lies
with the officers who were present and we therefore cannot agree
with the conclusion in the report that 'from the results of
the investigation conducted there was no possible manner of
formulating criminal evidence against one of the police officers'.

"After examining
the police and autopsy reports, Professor Pounder suggested
that the pathologist in Curaçao should be specifically asked
to examine statements on the circumstances of death and then
to suggest the mechanism of causation of the fatal injury in
order to obtain the necessary causal link for the authorities
to conduct a full investigation into his death."

141. The
Pathologist in Curaçao provided a second opinion and reaction to
the report of Professor Pounder and Amnesty International:

"Following perusal
of the autopsy report, she agrees with Professor Pounder that
powerful thumping and pressing force on the chest, through bruising
of the heart, must have led to the cause of death in the case
of Henry Kenneth Every. The lack of external visible lesion
of the skin or bones of the chest wall, by no means excludes,
in the case of diagnosed internal lesions, the effect of thumping
force applied to the chest. Also with reference to the mechanism
which must have led to this type of lesion, she agrees with
Professor Pounder.

"The pathologist
received photocopies of the following procès-verbal and reports
regarding the circumstances surrounding the death of Henry Kenneth
Every:

"Upon perusal
of the aforementioned, the following obscuri-ties were depicted,
which render the indication of the causal mechanism for the
origin of the deadly lesion extremely difficult in this case:

I did not receive
any summary or indication from the Public Prosecution Office
regarding what were considered as the most probable facts
as to the arrest and death of Henry Kenneth Every.

In the declarations
made by witnesses, the alleged blows brought about by the
police officers vary from solely kicks against the groin
and blows with the baton on the fingers to 'bashing in'
on H.K. Every's entire body. From the declarations it cannot
be concluded as a matter of course that pressing force was
used on the chest, even though various declarations contain
statements on this point which require more specific explanation.
It could, however, be too far-fetched and misleading to
adduce the statements rendered according to one own's personal
judgement as possible indications for an explanation of
the manner in which H.K. Every had received the fatal lesion.

Virtually all
declarations made to this regard mention H.K. Every's fierce
opposition against his arrest, during which he was allegedly
kept in check in order to finally get handcuffed. No mention
was made of the position he was in while being kept in check
nor which methods or manoeuvres were applied to keep him
in check.

"In the report
and the procès-verbal of the police, mention is also made of
the fact that H.K. Every manifested fierce opposition during
the ride to the polyclinic, during which his legs ultimately
had to be handcuffed. Once again it is not clear whether H.K.
Every was sitting on a bench or whether he was on the floor
of the jeep and in what position. It is not clear either in
which position he was kept in check in the jeep. This information
is essential in order to determine whether there was an impact
of pressing force on the chest.

"Finally, she
argues that on the basis of the documents submitted to her for
perusal, it is not possible to establish, in an unambiguous
manner, the casual link between the fatal lesions of the heart
manifested at H.K. Every's autopsy and the manner in which these
were brought about. In order to be able to answer Professor
Pounder's questions satisfactorily, more clarity with regard
to the afore-mentioned is required. It is to her utmost regret
that the pathologist who effected the autopsy was not called
in since September of 1990 to give her point of view to this
effect or to indicate which pieces of information would be required
for enlightenment as to the manner in which the fatal lesion
could have been brought about."

2. The
Leroy Neil case

142. The
facts: On 9 February 1991 Leroy Neil, who was born in Jamaica, on
27 November 1956 was interrogated by the investigators of the Narcotics
Department. He had been arrested on 8 February (10.30 a.m.) and
he was detained at the House of Detention in Curaçao. During the
interrogation effected by the aforementioned investigators, the
suspect slumped forward against the interrogation table and subsequently
lay down on the floor. The doctor who was called on could only certify
his death.

143. The
investigation: Immediately after the doctor's testifying to Mr.
Neil's death, the Public Prosecutor was notified. The latter promptly
had the body seized and transported to the hospital. The pathologist
was requested to perform an autopsy and the Consul-General of Jamaica
was notified. The Public Prosecutor, through the Commissioner-of-Police,
requested that an investigation be conducted, during which both
prison personnel and the doctor and the investigators who had carried
out the interrogation were questioned. From the investigation it
was concluded that the day prior to his death Mr. Neil complained
at the prison about stomach pains. The doctor gave him medication
(Novaminsulfonum) for this complaint. On Saturday, 9 February 1991,
Mr. Neil was groaning audibly when taken from the prison to the
department where he would be interrogated. The investigators in
charge of transporting him notified their Narcotics Department counterparts
of this. Prior to the investigation Mr. Neil was made to wait in
a waiting-cell. After checking the cell, it was established that
Mr. Neil had vomited. He was explicitly asked whether he felt well
enough to be submitted to an interrogation. Despite his affirmative
answer, the interrogators heard other detainees in order to give
Leroy Neil a chance to get his strength back after vomiting. Not
once did he groan with pain after the interrogation started. After
half an hour he asked to go to the rest room, which he was immediately
allowed to do. The investigators did notice, however, that he was
staggering when he returned. After an additional two or three minutes
of interrogation he stated that he felt dizzy, he slumped forward
on the interrogation table and then chose to lie down on the floor.
He no longer reacted to the calls of the investigators. The Chief
of Staff immediately notified the doctor. The doctor, who is employed
by the Government and is also the official medical attendant of
the prisoners, as well as detainees, confirmed his death. Upon the
request of the Consul-General of Jamaica the autopsy was not performed
until a Jamaican attorney could be present: the postmortem was performed
in the presence of Mrs. Donna R.C. McIntosh-Brice, attorney-at-law,
from Kingston, Jamaica.

144. According
to the autopsy report there were symptoms of peritonitis and a purulent
area between the lower abdomen, the liver, and the diaphragm. Seven
hundred millilitres of purulent fluid were found in the abdominal
cavity. The peritonitis led to shock, which eventually resulted
in death. Furthermore, in the last moments of his life there were
signs of Mr. Neil choking on his own vomit. The external examination
showed a narrow contusion of 4 cm in length in the sternum. Apart
from that particular contusion there were no other indications of
physical abuse. According to the pathologist the aforementioned
contusion is consistent with the information regarding Mr. Neil's
slumping forward against the interrogation table. The Jamaican attorney
was briefed there and then by the pathologist. Via the Consul-General
of Jamaica a copy of the autopsy report was also submitted to the
Jamaican authorities and the relatives of the deceased. From their
part, there were never any questions about or criticism levelled
at the manner in which the investigation was conducted and the autopsy
performed.

145. Conclusion:
Taking into consideration the advanced stage of the peritonitis
it can be concluded that it was not acute. It probably had been
dormant for a while. The doctor heard the complaints and prescribed
medication. There was absolutely no physical abuse on the part of
the police. The deceased never showed any form of aggression. On
the contrary, he was probably very subdued as a result of the pain
he was experiencing. To the police it was evident that they were
dealing with a detainee who was not feeling well. The police did
not exert any form of violence.

146. Amnesty
International's reaction to the report of the Public Prosecution
Office was as follows:

"The second
case raised by Amnesty International with the Netherlands Antillean
Government was that of Leroy Neil who died on 9 February 1991
of peritonitis while under interrogation by the Narcotics Department
in Curaçao. It was reported to Amnesty International that prior
to his death Leroy Neil had claimed to fellow prisoners that
prison officers had forced a truncheon into his anus and that
they had heard him screaming.

"Professor Pounder
confirmed the opinion in the autopsy report that the cause of
death was peritonitis. In his view this raised two questions:
firstly, the degree of care given to a man suffering from peritonitis
and secondly, the causation of the peritonitis.

"His opinion
on the first was that 'it is important to bear in mind that
a person suffering from peritonitis will inevitably be severely
ill, in pain, incapable of walking upright with a normal posture,
vomiting and otherwise in a physical state such that it would
be clear to any lay observer that the person was seriously ill.
To interrogate an individual in such a state displays at the
least a lack of basic human compassion'. Your report confirmed
that some of these symptoms were present in the case of Leroy
Neil.

"In the opinion
of Amnesty International, the action of the police and the related
medical and prison staff can be considered to constitute cruel
and inhuman treatment to an extreme extent and to breach all
existing national and international standards on the treatment
of detainees, in particular regarding the provision for medical
care.

"The pathologist
who prepared the autopsy report apparently regarded the cause
of the peritonitis as unexplained, but had excluded the presence
of natural disease of the stomach, small bowel, large bowel
and appendix which might have produced such a peritonitis. In
the opinion of Professor Pounder, 'the causation of the peritonitis
is in my view the more important aspect of the case given the
allegation of the assault by forcing a truncheon up the anus.
It is well recognized that the introduction of such foreign
objects into the anus and rectum may cause a peritonitis. The
mechanism is a stretching damage of the tissues and there need
not necessarily be any major visible injury. Unfortunately the
autopsy report in this case does not include a description of
the anus and rectum and it is likely that these were not examined.
It would not be unusual in a routine autopsy not
to examine the anus and rectum, but given the circumstances
of the case this is a regrettable omission'.

"He concluded
that a 'peritonitis of this type is a recognized complication
of the insertion of a foreign object into the anus and in this
instance can be regarded as providing corroboration for the
allegation'. He suggested that 'the pathologist be given the
information about the specifics of the allegation and then asked
to give an opinion on her autopsy findings in the light of this
new information'. An inquiry of this nature would be directly
relevant to establishing the charge of ill-treatment."

147. The
reaction of the pathologist in Curaçao to the report of Professor
Pounder and Amnesty International was the following:

"Following perusal
of the report of Dr. Pounder the pathologist informs that the
whole body is routinely inspected in any forensic autopsy, including
genital and anal regions. The rectum is routinely examined together
with the other parts of the large bowel. The anal canal is not
routinely examined, but will be in any future case, regardless
of any allegations. The pathologist does not usually describe
all parts of the small and large bowel separately in the absence
of lesions, unless she explicitly wants to emphasize that no
lesions were found in a specific part of the bowel. In the case
of Leroy Neil she was not aware of the allegation that a foreign
object might have been inserted into his anus and rectum. She
had been informed that Neil was allegedly beaten to death while
in custody. His whole body including external genitalia, perineum
and anal region were inspected for signs of injury. No visible
signs of injury were found. Since no specific questions were
asked she confined herself to stating that there were no signs
of injury compatible with the exertion of external violence
on the body of Neil. The stomach, small and large bowel, including
the rectum were definitely examined in search of common causes
of peritonitis and of traumatic lesions. There were no visible
lesions to the rectum or other parts of the bowel. The finding
of this type of peritonitis in an adult without any clear anatomic
cause or known predisposing illness is indeed rare. Although
the possibility of infectious disease of the bowel (e.g. salmonella)
could not be proven in this case, it was hypothetically considered
as an uncommon possible cause, because of the history of apparent
diarrhoea and vomiting.

"It
is well recognized that introduction of foreign objects into
anus and rectum may cause peritonitis, to her knowledge, through
puncture, perforation or other obvious damage of the rectal
wall. She is not familiar with the mechanism of a stretching
damage of tissues without any visible injuries leading to such
rapidly ensuing and fatal peritonitis. She has consulted other
pathologists in the Netherlands including patholo-gists of the
Forensic Pathology Department in Rijswijk, the Netherlands,
but none of them were familiar with the mechanism. She has not
been able to find literature on this particular matter.

"According
to Professor Pounder there need not be any major visible injury
in the case of stretching damage to the tissues. In the case of
Leroy Neil this would imply that in spite of the apparent absence
of any visible injury, the possibility of a foreign object having
been inserted in the anus and rectum of the deceased cannot be excluded
with certainty on the basis of the autopsy findings alone. Consequently,
inquiry into the events after detention of Leroy Neil remains necessary
to exclude such beastly abuse. On the other hand, with proper restriction,
she cannot at this moment sustain the suggestion of Professor Bounder
that the finding of this type of peritonitis 'can be regarded as
providing corroboration for the allegation' without comment. Given
the negative autopsy findings, in her view any possibi-lity remains
hypothetical.

"In the letter
from Amnesty International Professor Pounder is cited. Since
this case remains very puzzling and unsatisfactory, she would
like to know if Professor Pounder considered any other possibilities.
If at all possible, she would very much appreciate receiving
the complete text of his comments on the autopsy report of Leroy
Neil. She would be indebted to him for receiving the sources
of publications regarding the mechanism of stretching damage
to the ano-rectal wall.

"Furthermore,
she takes the liberty of commenting on the fact that although
there might not have been any clear symptom or sign of peritonitis
on medical examination of Leroy Neil, there were at least evident
signs of illness (vomiting, diarrhoea) as appears from the information
given to me, requiring, at the least, proper care.

"As to the reports
the pathologist received regarding the events after detention
of Leroy Neil she observed that a detailed record of the complaints
and course of illness of Leroy Neil were lacking, making it
very difficult to get any proper insight into the course events.
She should like to suggest that a detailed record be kept in
any case of complaints or illness of detainees."

148. The
conclusion of the autopsy report was as follows:

"During the
autopsy performed on the remains of Leroy Neil, 34 years of
age, a general purulent inflammation of the peritoneum was established.
No clear-cut anatomical cause could be found for the said purulent
inflammation of the peritoneum. The seriousness of the aforementioned
symptoms can explain the cause of death. Apart from a small
contusion of the skin, brought about when the deceased fell
forward according to information provided, there were no signs
of physical abuse or external violence. During the post-mortem
examination cannabincide 9 THC - COOH was found in the urine."

3. The
Moreno G. Fabias case

149. The
facts: On 22 May 1991, during the arrest of two persons, including
Mr. Fabias, carried out by a police patrol consisting of three police
officers, a baton was used on Mr. Fabias by one of the officers.
Mr. Fabias filed a complaint of police abuse.

150. The
investigation was conducted by a police officer belonging to a completely
different department than the one where the said patrol members
are employed. Upon request of the Public Prosecutor the staff of
the Commissioner were also drawn into the investigation. The doctor
whom Mr. Fabias approached with the announcement that he had been
physically abused by the police concluded that there were welts
on the right shoulder, oval-shaped bruises on the left upper and
lower arm, haemorrhages down the middle of his back and on the lower
back, severe haemorrhages on the buttocks, and a contusion of the
right big toe. Mr. Fabias stated that he and his friend Ottmar Matheu
had been detained by a police patrol and that while he was being
frisked, he was kicked in the legs to spread them, and was subsequently
hit with a baton all over his body.

151. Ottmar
Matheu stated that he saw a police officer hit his friend Mr. Fabias
without any reason while he was in a standing position, with a baton
and with his fists. Afterwards Ottmar Matheu withdrew his statement,
saying that he had only wanted to do his friend a favour. Of the
other two police officers, one stated that he had not seen abuse
take place because he was busy with Ottmar Matheu. The other stated
that whilst being frisked Mr. Fabias took up a boxing position which
prompted his colleague to hit Mr. Fabias twice with a baton. After
the official police report was submitted the Public Prosecutor dismissed
the case due to lack of evidence.

152. Conclusion:
This was certainly a case in which violence on the part of the police
was applied. Even though there are justified doubts as to the legitimacy
of his actions, between the two arrested persons there was no uniform
opinion as to the manner in which said violence had taken place,
had Mr. Fabias not been immediately attended by a doctor reasons
for which the Public Prosecutor was of the opinion that it was not
necessary to continue legal pursuit of the police officer in question
for the alleged violence.

153. Amnesty
International's reaction to the report of the Public Prosecution
Office was the following:

"The third case
sent to your Government was that of Moreno G. Fabias who was
arrested on 22 May 1991 by a three-man police patrol. The report
provided by the Government of the Netherlands Antilles stated
that a doctor who examined Moreno G. Fabias after his arrest
noted injuries to his right shoulder, left arm, back, buttocks
and right big toe.

"Professor Pounder
considered that the most significant aspect of the injuries
is the pattern, with the inference that the blows were struck
from behind. The police report is unclear about whether the
police explanation is that Moreno G. Fabias was struck by an
officer who was face-to-face with him, or whether a second police
officer struck him from behind when he was confronting the first
officer. However, the important conclusion is that the number
of injuries sustained by the complainant is not consistent with
the claim in the police report that Moreno G. Fabias was only
struck twice with a baton.

"Under these
circumstances Amnesty International would expect the Public
Prosecutor to have proceeded with the inquiry and, if justified,
the prosecution of the police officer or officers involved.
Amnesty International cannot agree with the conclusion of the
Public Prosecutor that there was sufficient reason to drop the
case because 'there was no uniform opinion as to the manner
in which said violence had taken place' and that Moreno G. Fabias
had been immediately attended by a doctor."

4. The
Xavier Fluonia case

154. From
the investigation conducted by private investi-gators, as well as
the autopsy carried out by the pathologist it has become evident
that the suspect hanged himself with a long shoelace in his cell.
The cause of death is thus: death by suffocation as a result of
hanging. Previously, after his detention, some shoelaces were taken
from the suspect. How he acquired or how he remained in possession
of the shoelace utilized, can no longer be traced. Apart from a
cut at the back of the head, caused presumably when the already
lifeless body fell to the ground when the cell door was opened,
no other indications of violence were encountered by the pathologist.
It can only be assumed that the complaining relatives, who saw the
body after the abduction considered the traces of the autopsy performed
by the pathologist as traces of violence brought about by the police.

155. Conclusion:
In the case of Jeroen Xavier Fluonia, 20 years of age, there were
traces of external, mechanical pressure and girding force (hanging).
The cause of death can be explained by this effect of force. There
was no other cause of death.

156. Amnesty
International reacted to the report of the Public Prosecution Office
as follows:

"We understand
that an investigation was opened into the death in police custody
of Jeroen Xavier Fluonia on 26 July 1992. We understand that
the police and an official from the Prosecutor's Office informed
his family that Jeroen Fluonia committed suicide by hanging
in cell No. 6 of the police station at Wilhelminaplein, Curaçao,
where he had been held since 23 July 1992. His mother and girlfriend
inspected the cell in which he allegedly died. They remarked
that cell no. 6 was small, extremely dirty, with an open hole
in the corner to use as a toilet, and covered in cockroaches.
The only furniture they saw in the cell was a bed consisting
of a broken concrete shelf with no mattress, pillows or sheets
for the prisoner to lie on.

"The reports
of the death which have been received by Amnesty International
raise a number of questions which we believe the investigation
should address.

"In the first
place, police officers who provided information to the family
were reportedly unable to agree as to what Jeroen Fluonia used
to hang himself. The family were apparently told in the station
at Rio Canario, Curaçao, that he used the laces of his trainers.
In Garipitoweg, Curaçao, they were told he used the cord from
the hood of his anorak and in Wilhelminaplein they were told
he used his belt.

"Secondly, sometime
after his death, his body was handed to a pathologist who carried
out an autopsy. According to the report of a witness who saw
the corpse, Jeroen Fluonia showed signs of injuries which, if
correct, Amnesty International would consider as constituting
prima facie indication that the prisoner had been ill-treated.
His right wrist and hand were badly swollen, his lips were split
and had been sutured, he had lost at least one tooth, the right-hand
side of his forehead was badly grazed, there was a substantial
swelling to the back of his head with a deep cut, bleeding and
further swelling and bruising on the left-hand side of his face
and behind his ear. The witness could see no marks of a ligature
on his neck although one would expect to find such marks on
the corpse of a man who had committed suicide by hanging.

"We would urge
you to ensure that a prompt, thorough and impartial examination
of the available evidence is carried out, including information
provided by Jeroen Fluonia's mother and girlfriend, and to examine
their allegations that there were signs of ill-treatment visible
on the corpse. We would appreciate your cooperation in informing
Amnesty International of the pathologist's estimate of when
the alleged facial injuries were incurred."

157. The
autopsy report is summarized below.

158. At
the autopsy performed on the remains of Jeroen Xavier Fluonia, 20
years of age, the following became evident:

(a) There
were two narrow, circular traces of cord around the throat. Both
traces of cord crossed one another on the throat under the thyroid
cartilage. One of the traces of cord went right around the throat/neck
region. The other trace of cord was inclined upward towards a corner
towards the back part of the head. In the soft parts of the throat
there were contusions brought about by cord, traces of subcutaneous
skin tissue, muscular tissue and thyroid.

(b) The
blood flow to the face was slightly arrested. The tongue was clenched
between the teeth and was bulging out of the mouth. In the white
of the eye and the conjunctiva of the eyelids there were several
little haemorrhaged points. The heart also manifested diverse little
haemorrhaged points. The heart and blood vessels contained a lot
of liquid blood.

(c) The
skin of the back of the head manifested an irregular hooklike chopwound
5 cm in length with some bleeding in subcutaneous adipose tissue.

(d) There
were no sickly abnormalities to be indicated, which could be of
importance for the cause of death.

159. According
to the aforementioned findings specified under (a), there was external
mechanical pressure, and girded force on the throat, which can be
occasioned by hanging. The cord traces were very narrow and appeared
as shoelaces, doubly entwined. The findings specified under (b)
indicated suffocation as the cause of death. Death by suffocation
could have been occasioned by the effect of force on the throat.
The chopwound referred to at the back of the head was occasioned,
according to the officer in question, when J.X. Fluonia fell to
the ground when the cord from which he was hanging

was loosened.
This skin lesion was superficial and showed no further internal
lesions. There were no further signs of external, mechanical force
on the body.

Conclusion
of the Government of the Netherlands Antilles with regard to the
reported cases

160. With
reference to the four cases concerned, the Government of the Netherlands
Antilles argues that more research activities should have been effected.
There are also shortcomings in these cases as to the carrying out
of the established procedures, such as the inaccurate specification
of all the police manoeuvres at the time of the respective arrests
and the inadequate supervision of the course of illness and complaints
on the part of the patient-detainee.

161. We
should like to stress that it was not feasible at that time to correct
possible omissions in the procedures followed, but that every time
corrections were made in organization and procedures, both by the
Minister of Justice and by the Public Prosecution Office of the
Netherlands Antilles, so as to prevent irregularities in any form.

162. One
of the most important measures taken as a result of these cases,
in cooperation with the prison doctors and the pathologist of the
National Laboratory, is that a protocol is being developed to tackle
efficiently and in a responsible manner the necessary investigation
in the event of police brutality and/or ill-treatment by prison
guards and continually to coordinate the activities of the Public
Prosecution Office and the doctors concerned.

163. As
a result of the correspondence with Amnesty International contact
was established between the pathologist in Curaçao and Professor
Pounder. He was requested that relevant literature be remitted that
can be utilized as a means of adjusting the local procedures in
force.

164. Furthermore,
we wish to assure you that the decisions directed towards renovation
that have been taken during the last few years are proof of the
fact that our efforts to implement all the obligations ensuing from
this Convention are incessant. Vide what has been said under
articles 2, 10, 11 and 13.

165. It
goes without saying that we always appreciate further advice and
suggestions on the part of the United Nations and Amnesty International.